Injuries Alleged: Traumatic brain injury; loss of consortium
Amount of Settlement: $1,200,000.00 (at mediation)
Case Summary:
Plaintiff, a 47-year-old software engineer, while on lunch break from work, was crossing a state highway when a large box truck operated by the defendant struck him. The weather was clear and dry. Plaintiff has no memory of the collision. The defendant claimed that plaintiff ran out into the roadway and that he had no time to stop or avoid striking him. The local police and state accident reconstruction team determined that the plaintiff was the major cause of the collision.
Defendants' insurer made an offer of $65,000.00 pre-suit and declined to have any further negotiations with counsel. Suit was thereafter filed including counts for loss of consortium on behalf of plaintiff's wife and minor daughter.
Through discovery, Plaintiffs' counsel successfully established the defendant's lack of credibility and was able to raise doubt about the accuracy of the police investigation. However, liability remained a most troublesome issue.
At mediation, plaintiffs focused on the loss of consortium suffered by plaintiff's wife and daughter. Using video clips of family members and friends embedded in their PowerPoint presentation to establish the breadth of the loss of consortium claims and citing Feltch v. General Rental Company, 383 Mass. 603 (1981) and Morgan v. Lalumiere, 22 Mass.App.Ct. 263 (1986), Plaintiffs' counsel demonstrated that the wife and daughter's loss of consortium claims were separate and independent causes of action from the Plaintiff husband/father's claim, and that such claims were not subject to reduction by the proportion of negligence a jury could attribute to the husband/father under the comparative negligence statute, and further, they could recover on these loss of consortium claims even if a jury found the husband/father more than 50% at fault. As a result, the defendants' insurer agreed to a substantial settlement with the lion's share of the recovery going to the wife and minor daughter.
